Citation NR: 9732017
Decision Date: 09/19/97 Archive Date: 09/23/97
DOCKET NO. 96-14 141 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUES
1. Entitlement to an increased rating for service-
connected post-traumatic stress disorder, currently rated as
30 percent disabling.
2. Entitlement to a total rating for compensation
purposes based on individual unemployability.
REPRESENTATION
Veteran represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
J.R. Moore, Associate Counsel
INTRODUCTION
The veteran had active military service from June 1941 to
June 1961.
The veteran's claim of entitlement to a total rating for
compensation purposes based on individual unemployability is
before the Board of Veterans’ Appeals (Board) on appeal from
a July 1995 rating decision by the St. Petersburg, Florida
Regional Office (RO) of the Department of Veterans Affairs
(VA) in which the RO denied the veteran's claim of
entitlement to a disability rating over 30 percent for
frostbite of the feet, found the veteran's claim of
entitlement to service connection for loss of use of both
feet due to service-connected frostbite of the feet was not
well-grounded, and denied the veteran's claim of entitlement
to a total rating for compensation purposes based on
individual unemployability. The veteran's notice of
disagreement with the denial by the RO of his claim of
entitlement to a total rating for compensation purposes based
on individual unemployability was received in August 1995. A
statement of the case was mailed to the veteran in September
1995. The veteran's substantive appeal was received in
February 1996.
The veteran's claim of entitlement to an increased rating for
service-connected post-traumatic stress disorder (PTSD) is
before the Board on appeal from a February 1996 rating
decision by the RO in which the RO denied the veteran's claim
of entitlement to a disability rating over 30 percent for
service-connected PTSD and also confirmed the previous denial
of the veteran's claim of entitlement to a total rating for
compensation purposes based on individual unemployability.
The veteran's notice of disagreement with the denial by the
RO of his claim of entitlement to a disability rating over 30
percent for PTSD was received in March 1996. A statement of
the case was issued in April 1996. A substantive appeal was
received from the veteran in April 1996.
The veteran is represented by Disabled American Veterans in
this appeal.
REMAND
As noted by the veteran's representative in an Informal
Hearing Presentation dated in July 1997, the schedular
criteria by which PTSD is rated changed during the pendency
of the veteran’s appeal. See 61 Fed. Reg. 52695-52702 (Oct.
8, 1996) (effective Nov. 7, 1996). Under Karnas v.
Derwinski, consideration of both old and new criteria must be
accomplished by the RO in these circumstances, with the
criteria most favorable to the veteran’s claim being used.
Karnas v. Derwinski, 1 Vet.App. 308 , 313 (1991).
To facilitate the RO’s decision, another psychiatric
examination should be administered to accurately assess the
severity of the veteran's current condition. The examiner
must be provided a copy of all relevant diagnostic codes (new
and old) in conjunction with the examination.
Additionally, since the veteran's claim of entitlement to a
total rating for compensation on the basis of individual
unemployability is dependent on the disability rating
assigned to the veteran's PTSD, the claim cannot yet be
decided. It therefore is also remanded.
Under the circumstances, the Board finds this case must be
REMANDED to the RO for the following actions:
1. The RO should obtain any VA
treatment records of the veteran
which are not currently in the claims
file and associate them with the
claims file.
2. The veteran should be afforded a
VA psychiatric examination. The
examiner should review the veteran's
entire claims folder, and provide an
opinion as to what effect the
veteran's service-connected PTSD has
on his social and industrial
adaptability. The examiner must be
provided by the RO with the
diagnostic criteria, both new and
old, under which the veteran could be
rated for PTSD. The examiner should
report the findings in terms
consistent with the old and new
regulatory criteria. A Global
Assessment of Functioning (GAF) score
should also be provided, and the
examiner should explain the meaning
of the score. Additionally, the RO
should request the psychiatrist who
conducts the foregoing examination to
render an opinion as to whether or
not the veteran's PTSD, separate from
any depressive disorder or any other
nonservice-connected psychiatric
condition, precludes the veteran from
performing gainful employment. All
indicated tests should be conducted.
3. As the veteran in April 1997
requested an increase in the rating
for his frostbite of the feet the RO
should adjudicate this issue and if
denied furnish appellate rights.
4. The RO should then review the
veteran's claims. Consideration
should be given to the old and new
criteria for rating PTSD. The RO
should rate the veteran's PTSD under
the rating criteria which is the most
favorable. The RO should then
consider whether or not the veteran
is entitled to a total rating for
compensation purposes based on
individual unemployability. If the
RO decision grants the veteran less
than the full benefit sought, the
claims folder and the assembled data
should be returned to the Board for
completion of appellate review after
issuance of a supplemental statement
of the case. No action is required
by the veteran unless he receives
further notice.
By this action, the Board intimates no opinion, legal or
factual, as to the ultimate decision warranted.
E. M. KRENZER
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1996).
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